Whistle-Blower Suit Says Device Maker Generously Rewards Doctors
By REED ABELSON
A prominent surgeon in Wisconsin was paid $400,000 a year by Medtronic for a consulting contract requiring him to work just eight days. Another doctor in Virginia received nearly $700,000 in consulting fees from Medtronic for the first nine months of 2005.

Kate Medley for The New York Times
Jacqueline Kay Poteet, formerly a senior travel manager for Medtronic, arranged doctors' trips to conferences.
These doctors work in a growing field, complex back surgery, and this makes them particularly valuable to the spinal-implant division of Medtronic. In recent years, the company has spent tens of millions of dollars on consulting contracts and other types of payments to them and numerous other prominent surgeons, according to papers filed as part of a whistle-blower lawsuit. The suit contends that some of these payments were made to attract or retain the doctors' business.
Medtronic, based in Minneapolis, is one of the country's largest medical device makers, with $10 billion in annual sales.

The documents shed new light on a matter that has troubled the medical device industry for years: the assertion that companies employ a variety of financial ruses to pay doctors who use their devices, a practice that medical and legal experts say is unethical and possibly illegal. But despite industry efforts to clean up such practices, the documents and accusations made by former Medtronic employees suggest that the problem persists and may have gotten worse.

The lawsuit, filed in United States District Court in Memphis two years ago and since amended, was brought by the whistle-blower, a former Medtronic employee. The Justice Department, which has the right to intervene in the case but has not yet done so, is seeking to recover Medicare funds. According to legal filings, it proposes that Medtronic settle the matter by paying $40 million.

The suit, which was sealed until Jan. 13, accuses Medtronic of giving spine surgeons "excessive remuneration, unlawful perquisites and bribes in other forms for purchasing goods and medical devices."

The plaintiff, Jacqueline Kay Poteet, a senior manager of travel services for Medtronic until 2003, has also accused the company in a supplemental complaint of continuing these improper payments in 2004 and 2005. Her lawyer, Andrew R. Carr Jr. of the firm of Bateman Gibson in Memphis, has objected to the proposed settlement offer as too low. Whistle-blowers typically receive a share of any settlement. A Justice Department spokesman declined to comment.

All the doctors involved in the lawsuit who were reached for comment said that the payments to them were appropriate and fair compensation for work done for Medtronic.

The company, which said it continues to cooperate fully with the government to resolve the case, declined to comment directly on the accusations, saying they remained the subject of litigation.

In a written response, a spokesman, Rob Clark, said, "We take these allegations very seriously and we do not tolerate conduct that is illegal or unethical." Consulting arrangements with doctors to improve devices, he said, "are critical, in our view, to the delivery of state-of-the-art health care and are perfectly legal."

Medical device makers, with billions in sales at stake, have for years actively courted physicians who prescribe their products and recommend them to other doctors. Companies frequently compensate doctors through generous consulting fees and speaking honorariums, or by underwriting their trips to attend medical conferences, former employees and industry consultants say.

The internal Medtronic documents filed as part of the suit offer an unusually detailed glimpse of the intense campaign that device makers wage to win doctors' loyalty. They show that Medtronic spent at least $50 million on payments to doctors over some four years, through June or later in 2005.

Both doctors and device companies defend the financial relationships they have as essential for the development of what are often life-saving products. But critics contend that these financial ties exert too much influence on medical decisions, and that the payments are rarely, if ever, disclosed to patients.

The payments become illegal when they are linked to a doctor's use of a particular device and violate the federal law against kickbacks, which says that payments and other benefits cannot be provided to doctors if the payments are intended to induce them to use the company's products.

But even if the payments are within the law - and Medtronic has not been found guilty of any illegal activity - the increasing amounts being given to doctors distort their judgment, said Arthur Caplan, a medical ethicist at the University of Pennsylvania, who said such industry payments were "too damn lucrative to believe anyone can resist."

In addition to consulting fees and other payments, the lawsuit said, Medtronic played host at medical conferences where the "principal objective" was to "induce the physician, through any financial means necessary" to use its devices. According to the Medtronic documents, the company closely tracked the use of its devices by the doctors who attended the conferences, choosing some for "special attention."

Ms. Poteet, the whistle-blower, worked for Medtronic until an injury forced her to leave in 2003. She was also involved in a legal dispute with Medtronic over her disability benefits; it has since been resolved. At Medtronic, she arranged trips for doctors to the company's conferences and became familiar with attempts to win the doctors' favor.

Because the devices are so profitable, the money being spent by Medtronic "is peanuts," said a former employee who still works in the industry and insisted on not being identified for fear of retaliation. Sales representatives earn generous commissions, so they will work hard to satisfy the doctors' demands, the employee said, adding, "You're going to make sure you do whatever he wants, whatever it is."

In recent years, the device makers have become a big source of additional income for surgeons, many of whom are increasingly reliant on their generosity. "The amount of money is astronomical," said Dr. James Herndon, a former president of the American Academy of Orthopedic Surgeons. The device makers, he said, "know the volumes these surgeons have."

"They seek them out, and they seek relationships with them."

Such financial relationships have attracted government attention, and United States attorneys in Boston and Newark issued subpoenas last year to eight major manufacturers, including Medtronic, as part of a wide-ranging investigation into the relationships between doctors and device makers. Medtronic is also the target of another whistle-blower lawsuit in Memphis, where its spine division is based; that suit also accuses it of making improper payments to doctors.

This heightened scrutiny has caused some companies to scale back their efforts, industry consultants, lawyers and former employees say. In addition, the industry trade group AdvaMed has issued voluntary ethical guidelines for companies; the guidelines, for example, disapprove of serving as hosts to conferences at luxury resorts.

"Over the last couple of years, companies are saying no" more often to doctors, the former Medtronic employee said.

But the lawsuit asserted that any changes by Medtronic might have been only temporary. Its "bribery program," as it was described in the suit, "has not only failed to cease, but continues unabated with increased payments made to many physicians," the suit said.

While payments to some doctors slowed during 2004, when the company was first under investigation, they rebounded last year, it said. A doctor in Virginia, Hallett Mathews, for example, made $300,000 in consulting fees in 2003 but only $75,000 in 2004. Last year, the company paid him nearly $700,000 for his consulting work through September.

Dr. Mathews, who was not named as a defendant in the suit, said the spike in payments was a result of a change in how he was paid, requiring him to document his work before he received any money and therefore increasing the amount he received last year. The consulting fees he gets from Medtronic, he said, are compensation for his time spent away from his family and his practice.

Spinal implants are used in complex back surgery, known as spinal fusion, to help make a patient's spine more stable. The cost of the components involved in typical fusion surgery for the lower back is around $13,000, according to Orthopedic Network News, an industry newsletter in Ann Arbor, Mich., and the overall United States market has grown to about $4 billion a year.

Medtronic's overtures to doctors often began when the surgeons were still in training, Ms. Poteet said. The company commonly paid for doctors to attend any of 200 professional meetings a year. If the doctors wanted to go snorkeling or play golf, the sales representatives or Medtronic employees almost invariably paid for the expense, she said.

When the doctors visited Memphis, she said, Medtronic employees would take them to a local strip club, PlatinumPlus, disguising the expenses as an evening at the ballet.

A Medtronic lawyer, Todd N. Sheldon, raised concerns in 2003 about whether the company should pay to take doctors sailing or fishing, or ask for contributions, according to a company e-mail message that is part of the legal filings. "When we are sending scores of doctors to a nice resort like this under the guise of training and education on our products," he said, "I think we need to be more careful and stick to the limits of our rules as best we can."

Medtronic said it had been a leader in pursuing industry ethical guidelines that suggest that device companies provide only "modest meals and receptions" and not pay for costly leisure activities.

A spreadsheet compiled by Medtronic for a June 2003 meeting in Dana Point, Calif., indicated what Medtronic hoped to accomplish with each doctor attending an event, Ms. Poteet said. This list of 230 or so doctors included an estimate of the dollar value of the devices each doctor used in surgery, including the value of the devices made by Medtronic. One doctor is described as "a 100 percent compliant M.S.D. customer," while others were cited for "special attention." M.S.D. referred to Medtronic Sofamor Danek, the largest competitor in the spinal device market.

A surgeon in Phoenix, who used an estimated $400,000 in devices, favored a rival maker, Spinal Concepts, the spreadsheet said. Company representatives were urged to make overtures to him. "M.S.D. corporate involvement at this program," it said, "would help us earn a bigger share of his business on a grand scale."

In the case of an orthopedic surgeon, Jesse Butler, Medtronic was competing with a spine company, Acromed, now part of a Johnson & Johnson unit. Acromed had previously asked Dr. Butler to take part in a research study of one of its devices "to buy his business," the spreadsheet notes said. The sales representative wanted Dr. Butler to use more Medtronic implants. "He has a consulting agreement for this, yet has not done much in the way of it," the notes said.

Johnson & Johnson declined to comment on the matter.

Dr. Butler, who was not named as a defendant in the lawsuit, said his participation in the study had nothing to do with a preference for Johnson & Johnson devices. "We don't make any money off these studies," he said.

Companies are eager for his business because he is a busy surgeon, but Medtronic "never did anything inappropriate," he said. The consulting arrangement "didn't really go anywhere," he added.

The notes for one doctor suggested an expectation that those offered an arrangement where they helped design a device would become loyal users. For example, K. Daniel Riew, an orthopedic surgeon in St. Louis, who is named as a defendant in the lawsuit, was described in the spreadsheet as using a substantial dollar amount of competing devices in his surgery. "He will be designing a new plate with M.S.D.," the notes say, "so all of his business will gravitate our way in the near future." Dr. Riew could not be reached for comment.

Many doctors were paid consulting fees far higher than the $3,000 a day a surgeon might typically expect, documents from the legal filing suggested. Dr. Thomas A. Zdeblick, the Wisconsin surgeon, signed a 10-year contract in 1998 that required him to consult with the company for two days every three months, a total of eight days, for which he would be paid $400,000 a year, according to a copy of his contract. Those payments stopped in 2004.

Dr. Zdeblick, who is a defendant in the lawsuit but who said he was unaware of the accusations against him, said he worked much more than what was required, as many as three or four days a month.

"I was working like crazy in those years," he said, and was being paid at market value for his work. He now does a minimum amount of consulting for Medtronic and is being paid per diem, he said.

THE Teachers Retirement Allowance Fund is the next public sector agency the auditor general should investigate, Tory education critic Myrna Driedger says.

Driedger wrote the auditor general this week citing concerns about the teachers' fund, where another whistle-blower lost his job in a situation similar to the one outlined in this week's auditor general's report on the Workers Compensation Board.

Driedger's letter said that in light of the auditor general's scathing analysis of the botched handling of a whistle-blower at the WCB this week, the TRAF matter needs investigation.

"The parallels to this case and the one with the WCB are startling," she said.

The auditor general's report on the WCB was initiated by a letter from its former CEO, Pat Jacobsen, to the minister in charge of the WCB, outlining concerns about alleged abuse of power by the WCB's longtime chairman, Wally Fox-Decent. That letter was sent back to the board and Jacobsen was eventually forced to resign.

The TRAF allegations are mostly contained in an 18-page letter dated Sept. 7, 2004, from Tom Ulrich, former president and CEO of TRAF, to the minister of education and the premier. Among other things, he raised concerns about the evaluation of potential investments, and alleged undue influence and potential conflicts of interest in some of TRAF's investment decisions.

Ulrich had been president and CEO of TRAF for five years. The letter was written around the same time the board informed him his contract would not be renewed. He was subsequently sued by the board for unspecified damages over the letter, a matter that Ulrich said is outstanding.

TRAF is responsible for close to $2 billion worth of pension money invested on behalf of Manitoba teachers.

"The auditor general's report on the WCB confirmed my concerns," Ulrich said in an interview this week. "These are all pieces of the same problem and it is growing like a fungus. There needs to be a broad investigation to get at the whole picture."

Many of Ulrich's concerns revolved around the TRAF board's decision to invest $10 million in Manitoba Property Fund, a downtown real estate investment fund promoted by the Crocus Investment Fund. The auditor general's report on the WCB focused special attention on that deal. His report on the WCB raised concerns about the possibility of poor investment decisions being made in that deal because of a number of potential conflicts of interest.

The $25-million Manitoba Property Fund, primarily designed to invest in the redevelopment of downtown Winnipeg's heritage buildings, was announced in July 2004. Ulrich raised significant concerns about the TRAF investment, based on an independent real estate analysis, he said.

Meanwhile, the interconnections between the partners in the deal were substantial:

* Alfred Black was chairman of the TRAF board at the time and was also chief investment officer of the WCB, which committed $10 million to the fund promoted and managed by the Crocus Investment Fund. Black would subsequently be seconded to become the acting CEO of Crocus in December 2004;

* Sherman Kriener, former CEO of Crocus, was an outside adviser to the WCB investment committee when the WCB agreed to invest in the Manitoba Property Fund;

* During that same time, Wally-Fox Decent was chairman of the WCB (and its investment committee, which did not have to report to the WCB board) and he was also on the Crocus board and chaired its investment committee.

In his report on the WCB, the auditor general went into great detail about these potential conflicts of interest and how such potential conflicts could lead to poor investment decisions.

Jon Singleton, the provincial auditor general, said he does not intend to investigate TRAF, but his office is monitoring the board's handling of the Ulrich affair.

Canada's real-life whistle-blowers say Ottawa's new protection bill will only make it harder to speak out

Jamie Tarrant - December 12, 2005

Whistle-blowers may be popular these days, but it hasn't always been so. Ask Brian McAdam. He spent a 30-year career in the Canadian Foreign Service, but after preparing a report revealing that known Chinese spies and criminals were regularly being issued Canadian visas, he was harassed by his bosses and eventually told to resign. Had McAdam gone public about government malfeasance today, he'd be hailed as a hero. Whistle-blowers have become the taxpayers' best friend, thanks to the ones who tattled on government wrongdoing and helped uncover the federal sponsorship scandal. In an effort to side with the do-gooders, the federal Liberals are rushing to pass whistle-blower protection legislation. But the whistle-blowers who inspired it say the new bill makes it less likely scrupulous employees will come forward in the future.

Allan Cutler was the government procurement officer who, after losing his job for refusing to authorize bogus Liberal contracts, told a Public Accounts committee about the funny business going on in the Public Works Department. In his Nov. 1 report on sponsorship, Justice John Gomery singled out Cutler as "[t]he only subordinate who challenged [ministry official Chuck] Guité's authority when he was told not to follow required procedures ... and the consequences of his defiance were immediate and dramatic." Gomery noted: "If whistleblower legislation is to have any meaning, it must protect public servants from the kind of retaliation to which Mr. Cutler was subjected."

That, insists Treasury Board president Reg Alcock, is what C-11 will do. Unlike its previous incarnation, Bill C-25, which was introduced in March 2004 but died on the order paper ahead of the June election, the latest whistle-blower bill improves employee protection, he says. Critics complained that under C-25, wrongdoing must be reported to senior bureaucrats--cabinet appointeees like Guité. The new bill calls for the installation of a special parliamentary commissioner. "If a whistle-blower comes forward and says they have been harmed or acted against because they raised a concern, the commissioner has the ability to act and correct that," says Alcock.

But the man who helped expose Adscam says whistle-blowers are safer now than they will be under the proposed law. Cutler notes that, under C-11, officials accused of wrongdoing are entitled to a taxpayer-funded lawyer, while the whistle-blower may only request legal assistance from his superiors--the very people he may be challenging. What's more, he adds, ethical employees will still risk everything. "There is nothing in there that says you have to compensate . . . a whistle-blower," Cutler says. "It was a bad bill when it was tabled and, in spite of [opposition] efforts, it is still a bad bill."

McAdam notes there's no guarantee of whistle-blower safety with a commissioner, who is bound to be just another government patronage appointee, just as susceptible to ministerial pressure. "Anybody that is part of that is part of the inner circle," McAdam says. Moreover, C-11 says the commissioner will report findings back to the self-same senior bureaucrats who may be at the heart of the misconduct. Meanwhile, information provided by a whistle-blower becomes confidential for five years, so the complainant is further prevented from tipping off the media. It also blocks the sort of access to information requests that reporters used to verify tips they received about Adscam--information that eventually uncovered the massive Liberal kickback. Canada's information commissioner John Reid recently told a parliamentary committee that, far from protecting whistle-blowers, the Liberals' new legislation is "designed to keep the details about alleged wrongdoing secret."

Joanna Gualtieri, a former portfolio manager at the foreign affairs bureau who was fired after revealing unnecessary expenditures in her department, calls the new legislation "a disaster." Says Gualtieri: "It's nothing more than the government trying to protect itself and fooling people into believing they've acted when in fact they have made things worse." She's formed an advocacy group, the Federal Accountability Initiative for Reform, intent on stopping the bill, now before the Senate. The group hopes to convince a Senate committee of the dangers of C-11. But they'll have to work quickly. With an election in the offing, the Liberals want the new law ratified by Christmas as a demonstration to voters that they're making efforts to ensure Adscam can't happen again. But if government corruption does rear its head once again, the new bill might just see to it that Canadians never find out.

US pilot who tried to stop the My Lai massacre of civilians in the Vietnam war

Michael Bilton
Wednesday January 11, 2006
The Guardian

Hugh Thompson, who has died aged 64, was the helicopter pilot who tried to halt the My Lai massacre of more than 500 villagers by American troops during the Vietnam war. At one point, he rescued 15 defenceless civilians while training his machine guns on US infantrymen commanded by the infamous Lieutenant William Calley, threatening to shoot if they did not stop the slaughter.

By the time he arrived in Vietnam in late December 1967, Thompson was a 25-year-old chief warrant officer reconnaissance pilot with the 123rd Aviation Battalion. On March 16 1968, he was flying his H-23 scout helicopter, with its three-man crew, over a part of Quang Ngai province known as Pinkville, supporting a three company search-and-destroy assault on several villages, which faulty intelligence had indicated were heavily defended by Vietcong troops. The US 1/20th Infantry Battalion attack was led by Charlie Company, commanded by Captain Ernest Medina, who sent in the 1st platoon, led by Calley, to clear out My Lai and several neighbouring hamlets.

Early on, Thompson spotted a young woman injured in a field. He dropped a smoke cannister to indicate she needed medical help; he claimed in a court martial later that Medina went over and shot her. During the massacre, Thompson discovered the bodies of 170 executed villagers in a drainage ditch. One of his crew rescued a child and flew it to hospital at Quang Ngai.

In another incident, he challenged Calley to help a group of civilians hiding in a bunker rather than attack them. When Calley refused, Thompson ordered his helicopter gunners to open fire on the 1st platoon if they advanced any closer. He then called down gunships to rescue the civilians.

On returning to Chu Lai military base, Thompson reported everything to his commanding officer. But a local inquiry whitewashed his complaints, claiming the civilian deaths had been caused by artillery fire. An elaborate cover-up ensued and Thompson was awarded the Distinguished Flying Cross for saving the lives of Vietnamese civilians "in the face of hostile enemy fire" - he threw the medal away, believing his commanders wanted to buy his silence.

A year later, the Pentagon learned the truth and a high-level inquiry was conducted by Lieutenant General William Peers. Thompson later appeared as a witness at the courts martial of several men involved in the massacre or the cover-up, though the only person convicted was Calley, who served a few months in jail before having his life sentence reduced and being given parole.

During his time in Vietnam, Thompson was shot down five times, finally breaking his backbone. He received a commission, but back in America some colleagues regarded him as a turncoat. When evidence of the atrocity was finally made public in late 1969, he was castigated by pro-Vietnam war politicians in Washington.

It was only 30 years later that Thompson was recognised as a genuine American hero by the Pentagon, after a nine-year letter-writing campaign. The US army had initially wanted his Soldier's Medal, the military's highest award for bravery in peacetime, to be presented quietly, preferring to keep what happened at My Lai in the background. But Thompson resisted. He wanted a ceremony at the Vietnam memorial in Washington, DC, and the bravery of his fellow crew members recognised as well. In March 1998, he finally got his wish.

Thompson was born in Atlanta, Georgia, to strict Episcopalian parents, and moved to nearby Stone Mountain when he was three years old. His father served with both the US army and navy during the second world war and spent 30 years with the naval reserve. His paternal grandfather was a full-blooded Cherokee Native American, forced off tribal land in North Carolina in the 1850s and resettled in Georgia. Thompson joined the US navy in 1961, and spent three years with a Seebees construction unit. After a brief return to civilian life in 1964, during which he became a funeral director, he re-enlisted in the army, as it was becoming engaged in Vietnam.

The My Lai experience affected him badly. He grappled with alcohol and had several failed marriages. After service in Korea, he returned to the US, dropping the name Hugh and calling himself Buck as a way of distancing himself from past events. He left the army briefly and then re-enlisted, flying with medical evacuation units and instructing trainee pilots. He retired from the army in November 1983 and worked as a helicopter pilot for oil companies in the Gulf of Mexico. Later he was involved with the Louisiana department of veteran affairs for six years, giving lectures to students and schoolchildren and speaking about ethics to military academies.

After his role in trying to stop the massacre was recognised in the US, Thompson and his surviving crew member, Larry Colburn, were taken back to My Lai, where they were introduced to three women who had survived the massacre. On a second visit three years later, he met an electrician from Ho Chi Minh City who, aged nine, had been one of the children Thompson had rescued from the bunker.
Thompson is survived by three sons and his partner Mona Gossen.
· Hugh Clowers Thompson Jr, pilot and whistleblower, born April 15 1943; died January 6 2006

The Plaintiffs sued the Defendant, Kent Shirley, an employee, for breach of fiduciary duty. They alleged misappropriation of confidential and proprietary information and public disclosure of privileged information, including making of statements defamatory to the Plaintiffs. Meanwhile, at the Saskatchewan Court of Queen’s Bench, the Defendant had earlier commenced action against the Plaintiffs for constructive dismissal, damages and aggravated and punitive damages. In the present action, the Court granted the Plaintiffs’ motion for Anton Piller Order requiring Mr. Shirley to grant access to his residence to KPMG Forensic team as well as the Plaintiffs’ counsel to conduct a search and seizure of Shirley’s computer and paper record for purpose of obtaining Plaintiffs’ confidential and proprietary records. This Order was carried out accordingly and an interim confidential report was prepared and sent to eligible parties, including the Court, pursuant to the Anton Piller Order. There was clear instruction on the confidential and restricted nature of this report and consequential liabilities for breach (para.7).

Meanwhile, while the action pended, Mr. Shirley died tragically. Apart from his lawyer, Mr. Shirley had a relationship with a certain Mr. Killoran who self-styled as investor advocate. Killoran claims that before his death, Shirley had requested his assistance as an expert professional witness and investor advocate with a privileged status. Killoran’s relationship with Shirley was not approved by the latter’s counsel. Following Shirley’s death, Killoran took advantage of his access, under unproven circumstances, of the KPMG interim report. He disseminated the report by e-mail and website postings to many targeted individuals, including the CJ of Saskatchewan, and securities regulatory agencies in Canada and the US, calling it “smoking gun evidence” and claiming that Shirley was a truth-teller or a whistleblower (para. 23). He described Shirley’s death as “collective murder” arising from “the refusals of EVERYBODY to publicly disclose” that the Plaintiffs were involved in fraudulent securities activities (para. 15) with a third party, Assante. He also described the Anton Piller Order obtained against Shirley as a “felony”. Meanwhile, the Plaintiffs had moved the court in Saskatchewan to find that Mr. Killoran’s conducts (publication of several e-mails) was in breach of that court’s existing order and therefore in civil contempt of the Saskatchewan court.

For obtaining and utilizing the KPMG interim report and incorporating same into his attacks of both the Alberta proceedings and the counsel for the Plaintiffs, and for tying these proceedings to the death of Shirley, the Plaintiffs moved the Court to convict Mr. Killoran for contempt of court. At the hearing of the motion, Mr. Killoran represented himself. The Court declined to convict Mr. Killoran of contempt in the face of the court as urged by Plaintiff counsel because of the former’s remarks that associated the proceedings with the death of Shirley. This, according to the Court, was because of Killoran’s inability “to separate his, and for that matter Mr. Shirley’s, concerns about the securities industry from the scope of the action” (para. 32).

However, Killoran’s refusal to be properly sworn and refusal to disclose where and from whom he obtained the KPMG interim report as well (para. 40) as his “deliberate and knowing disobedience of the use restrictions set with reference to the Anton Piller Order, and thus in deliberate and knowing disobedience of the Anton Piller order” (para. 49) amounted to obstruction of justice and a violation of the sub judice rule. The Court found that he “clearly attempted to hijack this action to pursue his own ends giving credence to the alleged premeditated securities fraud in Canada and United States involving applicants and Assante, attributable only in part to his relationship with Mr. Shirley” (para. 51). The Court declined to hold that Killoran’s conduct was one of criminal contempt partly because Killoran’s intervention only impacted negatively on private settlement initiatives between the Plaintiffs and the Shirley’s estate. There was no conclusive evidence on the public impact of Killoran’s action because “for the most part, [it was] unsuccessful in generating any meaningful response by industry regulators, politicians and the police” (ibid.).

In my opinion this topic post (SLAPP's) has the feel of the kind of legal attack that was put upon the late Kent Shirley and also Joe Killoran. It succeeded in that it completely took away the spotlight on the evidence and the allegations made, and turned the heat of legal retaliation towards those making the allegations instead.

WHAT ARE SLAPP's?
Generally, a "SLAPP" is a (1) civil complaint or counterclaim; (2) filed against individuals or organizations; (3) arising from their communications to government or speech on an issue of public interest or concern. SLAPPs are often brought by corporations, real estate developers, government officials and others against individuals and community groups who oppose them on issues of public concern. SLAPP filers frequently use lawsuits based on ordinary civil claims such as defamation, conspiracy, malicious prosecution, nuisance, interference with contract and/or economic advantage, as a means of transforming public debate into lawsuits.
Most SLAPPs are ultimately legally unsuccessful. While most SLAPPs lose in court, they "succeed" in the public arena. This is because defending a SLAPP, even when the legal defense is strong, requires a substantial investment of money, time, and resources. The resulting effect is a "chill" on public participation in, and open debate on, important public issues. This "chilling" effect is not limited to the SLAPP target(s): fearful of being the target of future litigation, others refrain from speaking on, or participating in, issues of public concern.

The filing of a SLAPP also impedes resolution of the public matter at issue, by removing the parties from the public decision-making forum, where the both cause and resolution of the dispute can be determined, and placing them before a court, where only the alleged "effects" of the public controversy may be determined. For example, imagine a company asks for a zoning variance to place an incinerator in a residential area. When local residents object to the city council, the company sues them for "interference with contract." The judge hearing the suit cannot decide the real issues -- the location of the incinerator -- but will have to spend considerable judicial resources to decide the side issues of the alleged "damages" or other consequences of the public debate on the real issues.

There can be no argument against individuals being encouraged to come forward and tell the truth.

There can be no argument against prosecuting those who would intimidate those who would come forward.

Unless of course you are involved in major misdeeds.

Anyone who wishes to do wrong will try to discourage witnesses from telling the truth. That is why police have witness protction programs. They realize that it is impossible to have sufficient policing to discover and identify all the perpetrators of crime so they offer rewards to the public and encourage paid informers.

Let's face it white collar crime is disrupting lives. Widows and seniors are being robbed by white collar criminals posing as investment advisors.

The industry insiders know who they are and what they are doing.

Why don't they come forward and tell the truth?

Some who would are intimidated. They have seen what has happened to others who tried to do so.

So what must be done?

Industry participants must join in to demand whistleblower protection for all Canadians.

Legislation is in the works for federal civil servants because of the disclosure of the Gomery commission.

Do we really need an inquiry to disclose the widespread wrongdoing that everyone in the industry knows exists?

Could anyone possibly think the regulators are not aware of the wrongdoing?

Sure, the industry covers up and uses legal barttles to discourage investors, regulators and anyone who would try to tamper with the way its done.

Maybe this forum will help initiate a movement to demand whistleblower protection for all Canadians.

This would help regulators to be effective and help to clean up the financial services indutry to make it better for investors and for honest participants.

WTF? You think you can ban me Larry? I will just continue to post what I want, when I want. BTW, you and you're "gang" are more than pathetic; you're pointless. You lost your job because you could not cut it and then you got the axe at Scotia too. Next you lose everything in a prolonged defamation suit. Get ready for armagedon.

Just a suggestion. My advice to you advocate is to keep hard copies of posts like this, keep the IP address from which posts like this come from, and copy them to your legal advisor if you have one.

This post appears quite threatening, may come from an illness, and I find it innapropriate to listen to on an investment advocacy site. Unfortunately 20% of the population has mental health issues, and they are among us.
Thank you for continuing to delete them, and for trying to keep the forums focused on the topics of the forum.

You can feel free to delete this after you read it as it does not pertain to the topic.

I guess I should respond to the last post. It is rather funny. Rather pathetic. Somewhat sad.

It suggests that I lost two jobs in the investment industry when in fact I have never lost a job in the investment industry or in any other industry. This is very easy to prove, based on employment records, IDA records of registration etc. What I have done is left one firm over ethical breaches and complaints against them (by me) and those are very well documented and clearly laid out in court documents filed in Alberta Court.

So the question remains, why are you so angry and sick? I have never met you. I don't think I know you. And yet you spread lies, hatred and bile. You quote, "get ready for armagedon"? This seems to suggest a health issue for which I am truly sorry. I hope you find a suitable outlet for your anger and that you learn to deal with it in a constructive manner.
Plese feel free to post anything you like, and I will feel free to clean up anything I like.
Best regards
the advocate

Anonymous wrote:Toodles, why should everything said be researched while rogue investment banker research analysts put out bogus reports. The investor advocacy movement is for everybody not just intellectual snobs. Many small investors aren't formally educated, english is a second language for some and some are seniors or disabled. How dare you exclude them from the process. Calling members of the media shills has long been accepted.

WTF? You think you can ban me Larry? I will just continue to post what I want, when I want. BTW, you and you're "gang" are more than pathetic; you're pointless. You lost your job because you could not cut it and then you got the axe at Scotia too. Next you lose everything in a prolonged defamation suit. Get ready for armagedon.

It states that one firm described the ability to increase margins and revenues to themselves by converting independant third party mutual funds over to proprietary funds. This would allow the entire management fee to go to the firm, rather than just a small slice.

The increase (benefit to the firm) is stated as being between twelve times and twenty six times greater by moving these assets from simply assets under "administration" to assets under "management".

It may (just may) be that certain firms and certain advisors were so taken by this potential for increase that they may have forgotten who they had an obligation to care for. Themselves first or the client first? One firm even has a multi million dollar advertising campaign surrounding the slogan "You First". Advocates simply ask, or demand that these promises be lived up to, rather than spoken, and then violated.

Advocates and those interesting in seeing that clients receive honest and professional service and advice would like to re-point out these facts as reminders to why some of speak out. A few observers to this forum have mistakenly named names, and tried to engage in less than mature dialogue to distract the forums from the underlying crime of abusing clients for gain. A few have gone so far as to claim that advocates are the true bullies. Some may be. I am certainly not a fan of how every advocate tries to get his or her message out. Just like some advisors are not very professional or ethical as advisors. I hope we can work together on mature discussion because we all seem to want the same thing. We all seem to want to rid the industry of bad actors who pee in the pool, whether it be the investment industry pool or the advocacy pool.

To lose mature discussion, fall into name calling, childish taunting, or name connection will only result in posts being deleted as they are discovered. Defamation law just does not allow each and every post to stand as it is written.
I know that most will understand the need for this, and some will not. thanks to all.

Smelly, as one of the "honest and honorable advisors", I think you're in the minority. Didn't a survey once reveal that something like 75% of advisors admitted they would be more likely to sell a fund if they received higher compensation. I think the "majority" of mutual fund salesmen would be shaking in their suits if a real investigation was ever done.

Excellent. I know Brian Mallard and the thousands of hard working, honest and honourable advisors in this country would welcome a fair unbiased review. But I can also think of one "advocate" currently languishing in jail in Sask because of his role, one ex-compliance officer and several current compliance staff members of a dealer and several representatives of the MFDA who would prefer there wasn't one as well as an extremely high profile Toronto journalist who would be deathly afraid of one and would do anything to stop one though.
So, in other words, it ain't gonna happen.